The opinion of the court was delivered by: TRAGER
The defendants in this case, the acting dean of the City University of New York ("CUNY") School of Law, and three student editors of the school's newspaper, The Brief, ("paper") move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the court grants these motions.
The plaintiff, Jackson Leeds, is an attorney who graduated from CUNY Law School in 1993. In September 1994, two of Leeds' articles highly critical of the law school were published by the paper. In early 1995, he sought to have a classified advertisement published in the school newspaper. In the proposed advertisement, Leeds intended to solicit material which would discredit certain faculty or administrators at the school and which would be "for use in a federal civil rights action against the school." Compl. Ex. 7. Leeds also sought in the proposed advertisement to urge individuals who had been discriminatorily treated by the school's criminal defense clinic to join in a complaint directed against the clinic which he had filed with the Office of Civil Rights of the U.S. Department of Education.
On Friday evening, February 10, 1995, Leeds learned that the three student editors had refused to publish the advertisement in the newspaper because they felt it was defamatory and would expose them and the paper to litigation.
Compl. P30. On the following Monday morning, February 13, 1995, Leeds filed his complaint in this court claiming his First and Fourteenth Amendment rights were violated by the editors' refusal to print his advertisement. Compl. date stamped in Clerk's Office, U.S. District Court, E.D. N.Y., 10:41 a.m., February 13, 1995.
Leeds also alleges that Acting Dean Rossein had failed to conform to the "custom of the CUNY that student newspapers have a faculty adviser." Compl. PP 16, 17. In P20, he alleges that Dean Rossein's failure to appoint a faculty adviser for the paper caused Leeds' constitutional deprivation.
With respect to the other employees of CUNY (none of whom are named defendants in the complaint although some employees are specified by name in the complaint itself), Leeds claims that they acted against the paper in retaliation for its printing his articles. Compl. P23.
Leeds alleges that the student editors, although not employed by the School of Law, were acting under color of state law in their decision not to publish his advertisement, and thus are thereby within the reach of 42 U.S.C. § 1983. At argument Leeds asserted that the editors were state actors or "conspired with state actors." Hearing Tr., p. 3. He also claims that the paper is a "public forum." Compl. P35.
To establish liability for constitutional violations under § 1983 it is essential that the plaintiff show that his rights were violated as a result of state action. In Rendell-Baker v. Kohn, 457 U.S. 830, 838, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982), the Court held that there was no state action in a school's retaliatory discharge of teachers following their communication with the board about a dispute with the head of the school even though the state provided virtually all of the school's funding and oversaw its hiring decisions. The absence of any showing that state actors or state policy played a part in the discharges was dispositive. In Sinn v. The Daily Nebraskan, a substantially similar case to that before this court, the Court of Appeals for the Eighth Circuit held that the refusal by a state college newspaper to publish an advertisement did not constitute state action "where there was a complete lack of control over the student newspaper on the part of the University officials," 829 F.2d 662 (8th Cir. 1987).
It is clear that the paper's editors who are law students are not state actors. The Court of Appeals for the Fifth Circuit has held: "The fact that a publication is sponsored by a state agency is not sufficient in itself . . . to establish state action." Estiverne v. Louisiana State Bar Assoc., 863 F.2d 371 (1989). The Estiverne court distinguished the case before it - in which it was undisputed that the state bar journal editors acting pursuant to statute were state actors - from a case, like that before this court, in which the publication ...